J-A24006-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DARCELL MCCOY

Appellant No. 318 EDA 2014

Appeal from the Judgment of Sentence December 18, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): MC-51-MD-0003137-2013

BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.

DISSENTING MEMORANDUM BY PANELLA, J. FILED DECEMBER 14, 2015

I respectfully dissent from my esteemed colleagues in the Majority. I 

would affirm the judgment of sentence following McCoy’s conviction of direct

criminal contempt, but remand for the correction of a clerical error. The trial 

court often confuses direct and indirect criminal contempt in this case. As 

explained in my dissent, however, it is clear from the record that the trial 

court, despite its confusion of the terminology, actually convicted McCoy of 

direct criminal contempt. This conviction should be affirmed.

I begin with McCoy’s final claim—her fifth issue raised on appeal. The 

Majority states that “in terms of the procedure used by the court, we cannot 

discern how it was proper to allow an eyewitness to the alleged wrongdoing 

____________________________________________

 Retired Senior Judge assigned to the Superior Court.
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prosecute Appellant.” Majority Memorandum, at 6. But this is not the issue 

McCoy raises on appeal. And we cannot reverse on a basis not even raised 

by an appellant on appeal. 

In this appeal, McCoy argues that her due process rights were violated 

because the trial “court ordered the hearing to go forward with the assistant 

district attorney acting as both the prosecutor and the witness.” Appellant’s 

Brief, at 35. But this is simply not true. The trial court never ordered such 

conduct. McCoy called the assistant district attorney as a witness—after the 

Commonwealth finished with its witnesses. See N.T., Hearing, 11/25/13, at 

17 (“Your Honor, the defense will call the District Attorney.”). Thus, this 

issue has no merit. Below, I explain why her other issues fail too. 

McCoy attended the preliminary hearing of her fiancée, and father of 

her child, Shawn Freeman. Freeman was charged with rape, among other 

offenses. After the sixteen-year-old victim testified, she stepped into the 

hallway located immediately outside the courtroom. Accompanying the 

victim were her father, sister, and an assistant district attorney. McCoy 

approached the victim and held her cell phone out towards the victim as if 

she was taking her picture. The victim’s father leapt in front of the cell 

phone and told her to stop taking pictures. Frightened, the victim and her 

sister fled back into the safety of the courtroom. 

The trial court postponed its docket to deal with this matter. The trial 

court had McCoy sworn in. McCoy denied taking the picture. The trial court 
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found her in violation of a stay away order it had entered earlier that day 

and sentenced her to a term of confinement of 29 to 60 days in county jail. 

Freeman’s attorney, Stephen Fleury, Esquire, was then permitted to “stand 

in for her” and argued on her behalf. N.T., Hearing, 11/25/13, at 7. He 

pointed out that McCoy had no way of knowing about the stay away order 

and that she was entitled to counsel and a hearing on the contempt charge. 

The trial court agreed and held a contempt hearing. 

Attorney Fleury represented McCoy. The assistant district attorney who 

witnessed the episode represented the Commonwealth. The victim recounted 

what happened in the hallway. The father testified as to what he saw. McCoy 

called the assistant district attorney as a witness. She testified that she 

observed McCoy holding a cell phone up to the victim. Finally, McCoy 

testified. She denied any wrongdoing. She stated that she never held up a 

cell phone and did not take any pictures. 

In her closing argument, McCoy argued that the Commonwealth failed 

to introduce into evidence any pictures from the cell phone. The trial court 

noted that “[y]ou don’t need a photograph to show that someone is pointing 

a phone at someone to intimidate them[]” and that “[w]hether they took the 

picture or not is completely irrelevant to the fact of intimidation.” Id., at 23-

24. 

The trial court found McCoy guilty of “indirect criminal contempt” and 

sentenced her to 30 to 60 days in county custody. Id., at 24. The order 
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finding her in contempt of court referenced 42 Pa.C.S.A. § 4137(a)(1). See 

Contempt of Court Order, dated 11/25/13. Section 4137 pertains to the 

contempt powers of magisterial district judges. The trial court in this case 

was a common pleas court judge. 

McCoy filed a post-sentence motion. The trial court held a hearing on 

the motion. At the hearing, McCoy brought to the trial court’s attention that 

the order improperly found her guilty under § 4137. The trial court 

responded, “that does not apply to me.” N.T., Hearing, 12/18/13, at 4 

(capitalized typeface omitted). McCoy then explained that both she and the 

Commonwealth were in agreement that the correct statute was § 4132 of 

the Judicial Code. See id. Ultimately, the trial court reaffirmed its finding of 

“contempt” and denied the post-sentence motion. It then entered another 

sentencing order. That order, however, notes that McCoy was convicted 

pursuant to 42 Pa.C.S.A. § 4137(a)(1), and ordered immediate parole. This 

timely appeal followed. 

I must first address the implications of the sentencing order 

referencing the wrong statute. I raise this issue sua sponte. I may do so 

because if the language referencing the incorrect statute controls the 

sentence is illegal. See Commonwealth v. Mathias, 121 A.3d 558, 562 n.3 

(Pa. Super. 2015) (“[C]hallenges to an illegal sentence can never be waived 

and may be raised sua sponte by the Superior Court.”). As I explain below, I 
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find that the incorrect statute referenced in the sentencing order is a mere 

clerical error, which the trial court could easily correct on remand.

The sentencing order is patently incorrect. Section 4137 only applies to 

magistrate judges. As of January 1, 1969, the office of magistrate was 

abolished in Philadelphia and a new municipal court, among other specialty 

courts, was established in its place. See Glancey v. Casey, 288 A.2d 812, 

814 (Pa. 1972). See also Pa.Const. Art. 5, § 6; Pa.Const. Art. 5, Schedule 

16(u).

“A trial court has the inherent, common-law authority to correct ‘clear 

clerical errors’ in its orders.” Commonwealth v. Thompson, 106 A.3d 742, 

766 (Pa. Super. 2014) (citations omitted). A court possesses such authority 

even after the thirty-day time limitation provided in 42 Pa.C.S.A. § 5505, 

Modification of orders. See id. See also Commonwealth v. Holmes, 933 

A.2d 57, 65 (Pa. 2007). The Pennsylvania Supreme Court has “set a high bar 

for differentiating between errors that may be corrected under the inherent 

powers of trial courts, and those that may not[.]” Commonwealth v. 

Borrin, 80 A.3d 1219, 1227 (Pa. 2013). “[C]orrectible errors” are “those 

determined to be ‘patent and obvious mistakes.’” Id. (citation omitted). A 

“clerical error” has been defined as an error that is “inconsistent with what in 

fact occurred in a case, and, thus, subject to repair.” Id. (citation omitted).

Our Supreme Court has affirmed the correcting of a sentencing order 

where the illegality was apparent on the face of the order, see Holmes, 933 
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A.2d at 66, and found, in a companion case, an error “obvious and patent” 

where an examination of the “Quarter Session notes in the record” disclosed 

a sentence for a probationary term that did not exist,” see id. and at n.18. 

The key is the “obviousness of the illegality ... that triggers the court’s 

inherent power.” Holmes, 933 A.2d at 66-67. Here, the error is painfully 

obvious. It references a contempt statute that is plainly inapplicable. No one 

was under the impression in this case that the trial judge was a magistrate. 

Section 4137(c) authorizes imprisonment of only up to 30 days whereas the 

trial court in this case imposed a maximum sentence of 60 days. In fact, as 

mentioned, no party has even mentioned § 4137 on appeal; the parties and 

trial court all refer to § 4132. 

What happened here is no different from a scenario where a defendant 

was charged with a particular offense, went to trial for or pleaded guilty to 

that particular offense, was convicted of that particular offense, and was 

sentenced for that particular offense, but the sentencing order mistakenly 

declares that the defendant was convicted of a completely different crime. 

Courts throughout the nation, including this one, see Commonwealth v. 

Young, 695 A.2d 414 (Pa. Super. 1997), have held that such an error 

constitutes a patent and obvious clerical error that is subject to correction, 

even after the trial court loses traditional jurisdiction. See, e.g., United 

States v. James, 642 F.3d 1333, 1343 (11th Cir. 2011); United States v. 
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McBride, 584 F.3d 1240, 1259 (9th Cir. 2009); State v. Benson, 822 

N.W.2d 484, 487 n.2 (Wis.App. 2012). 

I find that the trial court’s unfortunate reference to § 4137(a)(1) in the 

sentencing order constitutes an obvious patent defect or mistake and that as 

such the trial court possesses the inherent power to correct the order, 

despite the expiration of the modification period provided by 42 Pa.C.S.A. § 

5505. See Holmes. On remand, the trial court could simply correct the 

sentencing order. Now onto the merits. 

“[W]hen reviewing a contempt conviction, much reliance is given to 

the discretion of the trial judge. Accordingly, we are confined to a 

determination of whether the facts support the trial court decision.” 

Commonwealth v. Kolansky, 800 A.2d 937, 939 (Pa. Super. 2002) 

(citation omitted).

McCoy first argues that the evidence was legally insufficient to convict 

her of indirect criminal contempt for violating a stay away order. There are 

multiple problems with this argument. McCoy was initially found guilty of 

violating the stay away order, but the trial court abandoned that decision 

and ordered a contempt hearing focused on the intimidation of the witness. 

See N.T., Hearing, 11/25/13, at 4-8. As noted, Attorney Fleury, Freeman’s 

lawyer, informed the trial court that there was no way for McCoy to have 
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known about the stay away order. See id., at 7-8. Thus, violation of the 

stay away order became moot.1

It is true that after the hearing the trial court announced that it found 

her guilty of “indirect criminal contempt,” N.T., Hearing, 11/25/13, at 24, 

but at the hearing on the post-sentence motion the trial court notes that it 

actually found her guilty of direct criminal contempt. See N.T., PostSentence Motion Hearing, 12/18/13, at 7. In addition, both of the orders, 

although they reference the incorrect statute, indicate that the contempt 

occurred “in presence of court.” Sentence Order, dated 12/18/13 

(capitalization omitted). See also Contempt of Court Order, dated 11/25/13.

Direct criminal contempt involves conduct occurring in the presence of a 

court. See Commonwealth v. Patterson, 308 A.2d 90, 92 (Pa. 1973).

Indirect criminal contempt, on the other hand, occurs “outside the presence 

of the court.” Commonwealth v. Brumbaugh, 932 A.2d 108, 109 (Pa. 

Super. 2007) (citation omitted). McCoy was never held in indirect criminal 

contempt. 

McCoy next argues that there was insufficient evidence to sustain the 

conviction for direct criminal contempt. I disagree. The evidence shows that 

McCoy acted to intimidate the victim.

____________________________________________

1 This makes discussion of McCoy’s second issue unnecessary.
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The trial court found McCoy guilty of direct criminal contempt pursuant 

to 42 Pa.C.S.A. § 4132(3). That subsection requires proof beyond a 

reasonable doubt “(1) of misconduct, (2) in the presence of the court, (3) 

committed with the intent to obstruct the proceedings, (4) which obstructs 

the administration of justice. To obstruct justice, conduct must significantly 

disrupt proceedings.” Commonwealth v. Falana, 696 A.2d 126, 128 (Pa. 

1997) (citations omitted). “This Court has recognized misconduct occurs in 

the presence of the court if the court itself witnesses the conduct or if the 

conduct occurs outside the courtroom but so near thereto that it obstructs 

the administration of justice.” Commonwealth v. Moody, ___ A.3d ___, 

___, 2015 WL 6472549, *9 (Pa., filed October 27, 2015) (quoting Falana, 

696 A.2d at 129) (internal quotation marks omitted; emphasis in original).

Here, as noted, the victim, among others, testified that McCoy walked 

up to her and held a cell phone out as if she were taking her picture. This 

occurred just after the victim walked out of the courtroom and had testified 

that McCoy’s fiancée had raped her. Frightened, the victim immediately ran 

back into the courtroom seeking a safe refuge. This conduct did not occur 

directly in front of the trial court, but just outside the courtroom. The trial 

court writes in its opinion that “[t]his prevented the [c]ourt from proceeding 

with the remaining cases on the docket.” Trial Court Opinion, 11/5/14, at 2. 

I find this evidence sufficient to sustain the conviction for direct 

criminal contempt as the credited testimony establishes that McCoy was 
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trying to intimidate the victim, which was obviously designed to obstruct 

judicial proceedings. 

McCoy next contends that her due process rights were violated when 

the trial court failed to provide notice of any charge other than the violation 

of the stay away order. We disagree.

In the context of criminal contempt, the Pennsylvania Supreme Court 

has “candidly acknowledged” that it tolerates “a drastic departure from our 

traditional view of due process[.]” Moody, ___ A.3d at ___, 2015 WL 

6472549, *5 (internal quotation marks and citation omitted; brackets in 

original). “[T]he Constitution does not require any particular mode of 

informing an accused of the charges against him.” Commonwealth v. 

Mayberry, 327 A.2d 86, 91 (Pa. 1974) (citations omitted). All that is 

required is that “a contemnor should have reasonable notice of the specific 

charges and opportunity to be heard in his own behalf.” Id. (citations and 

internal quotation marks omitted). 

The record flatly contradicts McCoy’s assertion. McCoy was made 

aware that the trial court was proceeding with a hearing for criminal 

contempt based on her behavior in allegedly (at that time) intimidating the 

complaining witness in her fiancée’s preliminary hearing. See N.T., Hearing, 

11/25/13, at 4-8; 18-19. Accordingly, this claim fails. 

I would affirm the judgment of sentence and remand for the correction 

of a clerical error.
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